Citation Nr: 0908475
Decision Date: 03/06/09 Archive Date: 03/12/09
DOCKET NO. 04-33 486 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for
service-connected sinusitis and allergic rhinitis.
2. Whether new and material evidence has been submitted to
reopen a claim for service connection for vision problems
claimed as due to computer use and/or a blow to the head, to
include a chorioretinal scar, left eye, and, if so, whether
the claim may be granted.
3. Whether new and material evidence has been submitted to
reopen a claim for service connection for bilateral hearing
loss.
4. Whether new and material evidence has been submitted to
reopen a claim for service connection for a chronic low back
disorder (claimed as low back pain), and, if so, whether the
claim may be granted.
5. Whether new and material evidence has been submitted to
reopen a claim for service connection for chronic bilateral
tendonitis of the legs and/or ankles, and, if so, whether the
claim may be granted.
6. Whether new and material evidence has been submitted to
reopen a claim for service connection for a dental disorder
for compensation purposes.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Tresa M. Schlecht, Counsel
INTRODUCTION
The Veteran's claims files reflect that he apparently had
active service from April 1980 to June 2000, although no
DD214 is associated with the claims files. This appeal
initially came before the Board of Veterans' Appeals (Board)
from a January 2003 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Columbia, South
Carolina. The Veteran requested a hearing before the Board.
The requested hearing was conducted by the undersigned
Veterans Law Judge in March 2006. The Board Remanded the
appeal in July 2006.
The Board notes that the RO, in a June 2008 supplemental
statement of the case (SSOC), considered the request to
reopen service connection for a right or left leg disorder as
separate from the request to reopen service connection for an
ankle disorder. The issue as stated on the title page of
this decision reflects the same separate consideration of leg
and ankle disorders as in adjudication by the RO.
The Veteran's July 2002 statement raises a claim for service
connection for dry eye syndrome as secondary to service-
connected allergic rhinitis and sinusitis. This claim has
not been adjudicated, and is REFERRED to the RO for any
necessary action. In a May 2006 statement, the Veteran
contended that he had current disability due to residuals of
perforated eardrums in service. This claim is also REFERRED
to the RO for any necessary action.
The Veteran's July 2002 statement in support of his claims,
together with repeated statements regarding the cost of
continued dental treatment for teeth treated in service,
suggests that he is attempting to raise a claim for service
connection for teeth treated in service, for the limited
purposes of obtaining VA dental treatment for those teeth, as
well as raising the request to reopen the claim for service
connection for a dental disorder for compensation purposes
addressed in this decision. Mays v. Brown, 5 Vet. App. 302,
306 (1993) (claim for service connection for a dental
disorder is also considered a claim for VA outpatient dental
treatment). The Veteran should be asked to clarify whether
he wishes to pursue a claim for service connection for teeth
treated in service for purposes of eligibility for dental
treatment. This issue is REFERRED to the RO for any
necessary action.
During the pendency of the appeal, after the transfer of the
file to the Board, the Veteran submitted additional evidence
pertinent to some issues on appeal. VA regulations require
that pertinent evidence submitted by the appellant must be
referred to the agency of original jurisdiction for review
and preparation of a SSOC unless this procedural right is
waived in writing by the appellant. 38 C.F.R. §§ 19.37,
20.1304 (2008). The appellant provided a written waiver of
review by the agency of original jurisdiction. Appellate
review may proceed
The reopened claim of entitlement to service connection for a
right ankle, left ankle, or bilateral disorder, to include
tendinitis, is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran's disability due to service-connected
sinusitis and allergic rhinitis is manifested by minimal
mucosal thickening, and by fewer than six episodes yearly of
non-incapacitating sinusitis, but not by sinusitis which is
incapacitating, and antibiotic therapy lasting more than four
weeks is required only occasionally.
2. A November 2000 RO decision which denied the Veteran's
claims for service connection for vision problems, bilateral
hearing loss, a low back disorder, tendonitis of the legs and
ankles, and a dental disorder (for compensation purposes),
was not appealed, and that decision is final.
3. Evidence submitted since the November 2000 rating
decision includes a medical opinion suggesting a link between
a chorioretinal scar in the Veteran's left eye and service.
This evidence necessary to substantiate a claim for service
connection for a chorioretinal scar.
4. Evidence submitted since November 2000 which confirms
that the Veteran has presbyopia, a refractive error, is not
new or material evidence to reopen the claim, since
applicable law precludes service connection for refractive
error and such a claim cannot be substantiated.
5. Evidence submitted since the November 2000 denial of
service connection for hearing loss disability does not
demonstrate that the Veteran has a hearing loss disability as
defined for VA purposes, and does not address any
unestablished fact necessary to substantiate a claim for
service connection for a hearing loss disorder.
6. A 2004 medical opinion which states that it is possible
that the Veteran's current low back disorder is linked to his
service addresses a previously-unestablished fact necessary
to substantiate a claim for service connection for a back
disorder.
7. An August 2008 clinical opinion which states that the
Veteran has a current back disorder which was treated
numerous times in service and which results in neurologic
manifestations is favorable to the claim for service
connection for a chronic low back disorder.
8. Evidence submitted since the November 2000 denial of
service connection for chronic bilateral tendonitis of the
ankles which discloses a diagnosis of peroneal tendinitis and
instability, right ankle, and bilateral ankle strains, and
evidence which links these disorders to incidents of the
Veteran's service, addresses previously-unestablished facts
necessary to substantiate a claim for service connection for
an ankle disorder.
9. The evidence submitted since the November 2000 denial of
service connection for chronic bilateral tendonitis of the
legs fails to disclose a current diagnosis of a leg disorder
of either leg and attributes the Veteran's leg pain to a back
disorder, this evidence does not raise a reasonable
possibility of substantiating the claim, even though the
evidence is new.
10. Additional evidence submitted since the November 2000
denial of service connection for a dental disorder which
confirms that the Veteran did not sustain dental trauma in
combat during service does not raise a reasonable possibility
of substantiating a claim for service connection for a dental
disorder.
CONCLUSIONS OF LAW
1. Criteria for an evaluation in excess of 10 percent for
disability due to allergic rhinitis and sinusitis have not
been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West
2002 & Supp. 2008); 38 C.F.R. §§ 4.1, 4.2, 4.97, Diagnostic
Code 6511 (2008).
2. New and material evidence has not been submitted to
reopen a final November 2000 rating decision which denied
claims for service connection for refractive error, bilateral
hearing loss, tendonitis of the legs, and a dental disorder
(for compensation purposes), and the claims are not reopened.
38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2008).
3. New and material evidence has been submitted to reopen a
final November 2000 rating decision which denied claims for
service connection for a chorioretinal scar, left eye, a
chronic low back disorder, and a right, left, or bilateral
ankle disorder; the claims are reopened. 38 U.S.C.A.
§§ 5108, 7104 (West 2002 & Supp. 2008).
4. The criteria for service connection for a chorioretinal
scar have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107
(West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 3.303 (2008).
5. The criteria for service connection for a chronic low
back disorder have been met. 38 U.S.C.A. §§ 1110, 5103,
5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159,
3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Before addressing the merits of the Veteran's claims, the
Board will consider whether VA has met its duties to the
claimant.
The Veterans Claims Assistance Act of 2000 (VCAA) specifies
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
1. Duty to provide notice
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
This notice must be provided prior to an initial unfavorable
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
Veteran status; (2) existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
In claims to reopen, VA must both notify a claimant of the
evidence and information that is necessary to reopen the
claim and notify the claimant of the evidence and information
that is necessary to establish entitlement to the underlying
claim for the benefit that is being sought. Kent v.
Nicholson, 20 Vet. App. 1 (2006).
To satisfy this requirement, the Secretary is required to
look at the bases for the denial in the prior decision and
provide the claimant with a notice letter that describes the
evidence necessary to substantiate those elements required to
establish service connection that were found insufficient in
the previous denial. VCAA notice errors are presumed
prejudicial unless VA shows that the error did not affect the
essential fairness of the adjudication. To overcome the
burden of prejudicial error, VA must show (1) that any defect
was cured by actual knowledge on the part of the claimant;
(2) that a reasonable person could be expected to understand
from the notice what was needed; or, (3) that a benefit could
not have been awarded as a matter of law. See Sanders v.
Nicholson, 487 F.3d 881 (Fed. Cir. 2007).
The courts have determined that notice is not required where
the claim, including a request to reopen, cannot be
substantiated as a matter of law. See Smith v. Gober, 14
Vet. App. 227, 230 (2000) (claim that a Federal statute
provides for payment of interest on past-due benefits),
aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S.
821 (2002). In this case, the claim for service connection
for refractive error is precluded by law, and no further
notice or assistance to the Veteran could result in a
favorable outcome for the Veteran. As to the requests to
reopen which have been granted in this decision, the decision
is favorable to the Veteran, and no further discussion of the
VCAA is required.
By a decision issued in July 2006, the Board directed that
the Veteran be provided with notice which complies with the
criteria described in Kent. Notice of the information
necessary to reopen the claims in this case and notice of the
requirements to substantiate the claims for service
connection was issued to the claimant in July 2006. The
claims thereafter were readjudicated twice in 2008. Defects
in prior notice under Kent were cured by the 2006 notice and
2008 readjudication.
In addition, the claimant was notified in July 2006, as well
as in previous communications, of the evidence required to
substantiate a claim for an increased evaluation for
disability due to sinusitis and allergic rhinitis, for which
service connection had been awarded in November 2000. To the
extent that prior notices regarding the claim for an
increased evaluation were defective, the 2006 notice,
followed by readjudication of the claim in 2008, cured any
defect.
The notices provided to the Veteran meet each of the criteria
for appropriate notice set forth by the Court. The Veteran
responded by providing argument and statements which
demonstrate that the Veteran had personal knowledge of and
understood the criteria for service connection.
The July 2006 notice also advised the Veteran that a
disability rating and an effective date for the award of
benefits would be assigned if service connection were granted
for any claim. Notice regarding assignment of a disability
evaluation or an effective date for a grant of service
connection is, however, moot in this case, as to the requests
to reopen which are denied below. As to the requests to
reopen and claim for service connection granted below, the
Veteran will have a further opportunity to disagree with or
appeal any assigned effective date for an award or any
disability evaluation assigned.
The record establishes that the Veteran has had a full and
fair opportunity to participate in the adjudication of the
claim for an increased evaluation and the requests to reopen
claims of service connection. The Board concludes that the
appeal may be adjudicated without a remand for further
notification.
Duty to assist
The Veteran was afforded VA examinations of the severity of
his service-connected allergic rhinitis and sinusitis. VA
clinical records have been obtained. Clinical records from
the Veteran's non-VA treating providers have also been
obtained. The Veteran has not identified any other evidence
relevant to the claim for an increased rating. The duty to
assist is deemed to have been met with respect to the claims
which are reopened and Remanded; as to claims for which no
new and material evidence has been submitted, the duty to
assist is not applicable.
The Board finds that no additional notice or assistance is
required to fulfill VA's duties under the VCAA. Smith v.
Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).
Law and regulations applicable to claim for increased
evaluations
Disability evaluations are determined by the application of
the VA Schedule for Rating Disabilities (Schedule), 38 C.F.R.
Part 4. The percentage ratings contained in the Schedule
represent, as far as can be practicably determined, the
average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and the residual conditions in civil occupations. 38
U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes
(DCs) identify each disability.
A rating that is assigned with a grant of service connection,
such as the case in this appeal, must take into account all
evidence of the nature and severity of the disability. In
determining the present level of a disability for any
increased evaluation claim, the Board must consider the
application of staged ratings. See Hart v. Mansfield, 21
Vet. App. 505 (2007).
Claim for increased evaluation for sinusitis and allergic
rhinitis
Service treatment records confirm that allergies and
sinusitis were diagnosed and treated in service. The Veteran
had nasal septal reconstruction in 1999, prior to service
discharge. A grant of service connection for sinusitis and
allergic rhinitis was warded in a November 2000 rating
decision, and a noncompensable evaluation was assigned. That
evaluation was increased to 10 percent effective in July
2002, when the Veteran submitted the claim for an increased
rating which is on appeal. The Veteran contends that he is
entitled to at least a 30 percent evaluation.
The Veteran's sinusitis and allergic rhinitis disability is
evaluated as 10 percent disabling under 38 C.F.R. § 4.97,
Diagnostic Code (DC) 6511. Under 38 C.F.R. § 4.97, all forms
of sinusitis are rated under a general formula. A 10 percent
evaluation is warranted for one or two incapacitating
episodes of sinusitis per year requiring prolonged (lasting
four to six weeks) antibiotic treatment, or, if there are
three to six non-incapacitating episodes per year of
sinusitis characterized by headaches, pain, and purulent
discharge or crusting.
A 30 percent evaluation is warranted for sinusitis when there
are three or more incapacitating episodes per year requiring
prolonged (lasting four to six weeks) antibiotic treatment,
or, more than six non-incapacitating episodes per year of
sinusitis. A 50 percent evaluation, the maximum schedular
evaluation, is warranted for sinusitis following radical
surgery with chronic osteomyelitis, or, near constant
sinusitis characterized by headaches, pain and tenderness,
and purulent discharge or crusting after repeated surgeries.
An incapacitating episode of sinusitis means one that
requires bed rest and treatment by a physician. 38 C.F.R.
§ 4.97, DCs 6510-6514, Note.
In his July 2002 statement, the Veteran reported that his
allergies had increased in severity since the November 2000
VA examination. He reported that he now required additional
medications for control of his allergies. VA examination
conducted in December 2002 disclosed that the Veteran
reported sinus infections three times a year, with at least
two requiring antibiotic treatment each year. The Veteran's
sinuses were not tender. There was no congestion or visible
discharge.
This evidence is unfavorable to the claim for an evaluation
in excess of 10 percent, as there is no objective evidence of
incapacitating episodes, more than 6 non-incapacitating
episodes, or prolonged use of antibiotics.
In December 2003, the Veteran reported recovery from smoke
inhalation in October 2003 and frequent headaches and
nosebleeds. In late December 2003, antibiotics were
prescribed, and antibiotic medications were continued
essentially through March 2004. In December 2004, the
Veteran reported symptoms of headache, congestion, drainage,
and watery eyes, but no use of antibiotics since April 2004.
Antibiotics were again prescribed in March 2005. The Veteran
again requested antibiotics in November 2005. The objective
evidence establishes that the Veteran had one lengthy period
of approximately three months of use of antibiotics in late
2003 and early 2004, but did not manifest six non-
incapacitating episodes of exacerbation of allergies or
sinusitis in any year, and did not require prolonged
antibiotic use other than the period from late December 2003
through March 2004.
The Veteran had several sinus infections. Nevertheless, the
evidence during this period is unfavorable to an evaluation
in excess of 10 percent, as the Veteran did not have three or
more incapacitating episodes per year requiring prolonged
(lasting four to six weeks) antibiotic treatment, or more
than six non-incapacitating episodes per year of sinusitis.
The Veteran took antibiotics for otitis externa and otitis
media in June 2005 and July 2005. August 2005 treatment
notes reflect resolution of earache. In November 2005, the
Veteran reported exacerbation of symptoms of nasal congestion
and drainage. There is no record that the Veteran was
treated with antibiotics during the period from August 2005
though December 2006.
On VA examination conducted in December 2006, the examiner
noted that the Veteran's allergies were being treated with
Singulair and Zyrtec. The examiner opined that the Veteran's
abnormalities on CT scan were the result of allergies. The
Veteran reported that he had been treated with antibiotics in
the prior year. The treatment notes of record do not
document an episode of antibiotic use between August 2005 and
December 2006, although the clinical records associated with
the claims file reflect treatment for other disorders. An
August 2008 opinion confirms that the Veteran's service-
connected allergic rhinitis was manifested in service, but
does not provide a description of the current symptoms of
that disability. The August 2008 opinion does not provide a
factual basis for an increased evaluation.
The evidence establishes that incapacitation due to
sinusitis, as defined for purposes of DC 6511, that is, bed
rest prescribed by a physician, was not present. There is no
clinical record which discloses that a provider advised the
Veteran to confine himself to bed rest. It was noted that
the Veteran, who worked in a school, was frequently exposed
to viral infections and suffered repetitive viral infections.
Although the Veteran required antibiotic treatment lasting
more than four weeks at least once in 2005, there is no
clinical evidence of prolonged use of antibiotics more than
once yearly on average, which does not meet or approximate
the criteria for an evaluation in excess of 10 percent.
In May 2007, the Veteran reported increased pain and sinus
pressure. Computed tomography (CT) examination disclosed
increased mucosal thickening. Antibiotics were prescribed.
June 2007 CT examination of the sinuses disclosed "very
minimal mucosal thickening" of the ethmoid air cells on the
left, interpreted as disclosing improvement since May 2007.
VA outpatient treatment records through May 2008 disclose no
subsequent episodes of exacerbation of sinusitis or allergic
rhinitis requiring use of antibiotics. There is no clinical
evidence of prolonged use of antibiotics more than once
yearly on average. There is no evidence of objective
manifestation which met or approximated any criterion for an
evaluation in excess of 10 percent during this period,
although the Veteran's disability due to allergic rhinitis
and sinusitis was symptomatic, with exacerbations, during
this period.
There is no evidence that the Veteran met or approximated the
criteria for a 30 percent evaluation, or manifested
osteomyelitis or any other symptom defined as warranting an
evaluation in excess of 30 percent. The preponderance of the
evidence is against an evaluation in excess of 10 percent.
The evidence is not in equipoise, so the statutory provisions
regarding resolution of reasonable doubt are not applicable.
38 U.S.C.A. § 5107(b). As a consequence, the claim for an
increased evaluation in excess of 10 percent for his allergic
rhinitis and sinusitis.
Law and regulations applicable to requests to reopen claims
for service connection
Because the appellant did not submit a notice of disagreement
(NOD) following the November 2000 denial of claims for
service connection, that November 2000 rating decision became
final, based on the evidence then of record. 38 U.S.C.A. §
7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a),
20.1103.
However, if new and material evidence is presented or secured
with respect to a claim that has been disallowed, the
Secretary shall reopen the claim and review the former
disposition. 38 U.S.C.A. § 5108 (2002); Manio v. Derwinski,
1 Vet. App. 140, 145 (1991). The regulation governing
determinations of new and material evidence, 38 C.F.R.
§ 3.156, as in effect when the Veteran submitted his requests
to reopen in 2002, provides that new evidence is evidence not
previously submitted. Material evidence is defined as
evidence which, when considered by itself or with evidence
previously of record, relates to an unestablished fact
necessary to substantiate a claim. The regulations further
provide that new and material evidence must raise a
reasonable possibility of substantiating the claim. When
determining whether a claim should be reopened, the
credibility of the newly submitted evidence is to be
presumed. Justus v. Principi, 3 Vet. App. 510 (1992).
Whether new and material evidence is submitted is a
jurisdictional test. If such evidence is not submitted, then
the claim cannot be reopened, and the claim on the merits is
not subject to the Board's jurisdiction. 38 U.S.C.A. §§
5108, 7104(b); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed.
Cir. 1996).
Service connection may be granted for a disability due to a
disease or injury which was incurred in or aggravated by
active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service
connection may be awarded for a "chronic" condition when a
disease defined by statute or regulation as a chronic disease
manifests itself and is identified as such in service (or
within the presumption period under 38 C.F.R. § 3.307, and
the Veteran presently has the same condition. A presumption
is applicable to a claim for service connection for
arthritis, because that disorder is defined as chronic for
purposes of Veteran's benefits. The provisions regarding
presumptions have been considered in this decision.
Service connection may be granted when a disease manifests
itself during service (or during the presumptive period) but
is not identified until later, there is a showing of
continuity of symptomatology after discharge, and medical
evidence relates the symptomatology to the Veteran's present
condition. 38 C.F.R. § 3.303; see Savage v. Gober, 10 Vet.
App. 488, 495-98 (1997).
A Veteran is competent to testify as to a condition within
his knowledge and personal observation. See Barr v.
Nicholson, 21 Vet. App. 303 (2007).
Requests to reopen claims for service connection
The evidence of record at the time of a November 2000 denial
of the claims for service connection addressed in this appeal
included service treatment records and the report of VA
examination conducted in July 2000.
1. Vision problems
The July 2000 VA examination disclosed the Veteran had
corrected visual acuity of 20/25 for distance vision and
20/20 for near vision, corrected with eyeglasses, and a
chorioretinal scar, left scar. The examination report did
not differentiate the Veteran's refractive error from the
chorioretinal scar.
Under VA regulations, refractive error, such as the Veteran's
refractive error correctable using eyeglasses, is defined as
a congenital or developmental defect for which service
connection is precluded by regulation. 38 C.F.R. §§
3.303(c), 4.9, 4.84a (2007); Winn v. Brown, 8 Vet. App. 510
(1996). The RO properly denied service connection for the
Veteran's vision problems diagnosed as refractive error.
In July 2002, the Veteran requested that claims for service
connection for several disorders, including vision problems,
be reevaluated. The Veteran specified that the vision
problems for which he was seeking service connection included
eyestrain requiring corrective lenses and a chorioretinal
scar, left eye.
An April 2003 private physician's statement assigns diagnoses
of two eye disorders, presybyopia, and a stable chorioretinal
scar. Presbyopia is a type of hyperopia, a refractive error,
"a visual condition that becomes apparent especially in
middle age and in which loss of elasticity of the lens of the
eye causes defective accommodation and inability to focus
sharply for near vision." McNeely v. Principi, 3 Vet. App.
357, 363-64 (1992). Hyperopia is an error of refraction of
the eye, in which rays of light entering the eye are brought
into focus behind the retina, as a result of the eyeball
being too short from front to back. Dorland's Illustrated
Medical Dictionary 1349 (28th ed. 1994). The choroid is a
vascular layer that furnishes oxygen (blood) to the retina.
Id. at 324. The opinion distinguished the Veteran's
presbyopia from a chorioretinal scar. The examiner opined
that the scarring "may" be attributable to head trauma the
Veteran incurred during service.
Because this medical statement was not of record at the time
of the November 2000 rating decision, it is new evidence.
This medical statement establishes that the chorioretinal
scar, left eye, is not a congenital or developmental defect.
The medical statement is material to the Veteran's claim that
he incurred the scar during service. Therefore, new and
material evidence has been received to reopen the claim for
service connection for a chorioretinal scar, left eye.
The Board notes at this point that the November 2000 rating
decision did not specifically discuss the finding of a
chorioretinal scar, left eye, noted on the May 2000 VA
examination. The Board assumes that this evidence was
considered, as the RO need not discuss each specific finding
considered in a rating decision, but it is presumed that all
evidence was considered, and that the November 2000 rating
decision which denied service connection included
consideration of a chorioretinal scar. The additional
evidence since the November 2000 rating decision confirms
that the Veteran also has a refractive error. Because this
evidence simply discloses a disorder for which service
connection may not be granted, the evidence does not raise a
reasonable possibility of substantiating a claim, and is not
new and material to reopen a claim for service connection for
presbyopia.
Because new and material evidence has been submitted to
reopen the claim for service connection for a chorioretinal
scar, the claim is reopened and the Board must determine
whether the claim should be considered on the merits, if all
development is complete, or whether further development is
required. In this case, the service treatment records
establish that a chorioretinal scar was diagnosed which the
Veteran was in service.
The medical evidence contains no notation that the
chorioretinal scar was present at the time of service entry.
Service treatment records disclose the scar during service.
The April 2003 clinical opinion establishes that the etiology
of the chorioretinal scar is separate from the etiology of
refractive error. Therefore, each criterion for service
connection for a chorioretinal scar is met.
The medical evidence as a whole also establishes that,
although the scar is stable and currently causes no
impairment of vision, the scar requires monitoring. This
evidence, in essence, establishes that the scar is a
diagnosed disorder which may be considered a disability for
purposes of service connection, even though it is currently
not causing actual loss of vision.
Each criterion for service connection for a chorioretinal
scar has been met. See Epps v. Gober, 126 F.3d 1464 (Fed.
Cir. 1997), cert. denied sub nom. Epps v. West, 18 S. Ct.
2348 (1998), Caluza v. Brown, 7 Vet. App. 498, 506 (1995).
The reopened claim for service connection for a chorioretinal
scar is granted.
2. Bilateral hearing loss
Under 38 C.F.R. § 3.385, hearing loss is defined as a
disability for which service connection may be granted when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, or 4000 Hertz is 40 decibels or greater; or when
the auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent.
The July 2000 VA examination disclosed that the Veteran's
hearing thresholds were below the levels defined as hearing
loss, and his speech recognition ability was better than the
levels defined as manifesting hearing loss. The RO properly
determined that the evidence established that no hearing loss
disability for which service connection could be granted was
present.
The Veteran's statements in support of his 2002 request to
reopen the claim for service connection for bilateral hearing
loss discussed the findings on audiograms during service.
The Veteran did not indicate that his hearing had changed
since his post-discharge VA examination in 2000. The Veteran
has not submitted any subjective or objective evidence that
his auditory acuity has changed since that time.
The Veteran has not provided any medical evidence since that
time which is relevant to establish objective severity of his
hearing loss. For example, the Veteran was treated for
otitis media and otitis externa in June and July 2005. The
provider did not discuss the Veteran's ability to hear,
assign a diagnosis of hearing loss, or in any way indicate
that the Veteran's hearing was affected by the otitis. No
other clinical record submitted after November 2000 addresses
the Veteran's hearing loss.
During his March 2006 Travel Board hearing, the Veteran
testified that his sinusitis and allergies aggravated his
hearing loss and that inner ear infections related to his
allergies caused periodic problems with his ability to hear.
The Veteran testified, however, that the evidence of hearing
loss was the hearing testing conducted in service. This
testimony relates to the manifestations of service-connected
allergic rhinitis and sinusitis, but does not present any
basis for a finding that the Veteran now has loss of auditory
acuity which may be defined as a disability for VA purposes.
The Veteran has also submitted an August 2008 medical
opinion, but that opinion does not discuss the Veteran's
hearing loss or address the etiology of hearing loss.
In the absence of evidence showing that the Veteran has a
hearing loss disability which is related to service, the
additional evidence cannot be considered new and material.
The evidence since November 2000 is not new and material
under 38 C.F.R. § 3.156, and the request to reopen the claim
for bilateral hearing loss may not be granted.
3. Chronic low back disorder
The July 2000 VA examination disclosed muscle spasm, but no
abnormality of the lumbar spine on radiologic examination.
In June 2004, a provider at Shaw Air Force Base described
findings of bulging disks and degenerative joint disease of
the cervical spine and lumbar spine. The provider noted that
the Veteran reported an injury to his back in service, and
treatment of back pain in service. The Veteran asked whether
his current back pain could be due to the in-service injury.
The provider opined that he could not be sure whether or not
the Veteran's current back disorder was related to the injury
during service, but that such a relationship was certainly a
possibility.
At the time of the November 2000 rating decision, no low back
disorder was diagnosed. Therefore, the current diagnosis of
a low back disorder is material to an unestablished fact,
diagnosis of the claimed disorder, necessary to substantiate
a claim for service connection. The provider's opinion that
the current back disorder was "possibly" related to the
Veteran's injury in service, although speculative, relates to
an unestablished fact necessary to substantiate a claim, and,
since the credibility of that medical statement must be
assumed, raises at least a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156.
Because new and material evidence has been submitted to
reopen the claim for service connection for a low back
disorder, the claim is reopened and the Board must determine
whether the claim should be considered on the merits. In
this case, the medical opinion which serves as new and
material evidence to reopen the claim is too speculative to
warrant a grant of service connection without further
development, since the opinion states only the
"possibility" of in-service incurrence of the claimed back
disorder.
The evidence as to the likelihood of in-service
manifestations of a back disorder missing from the June 2004
opinion is supplied by an August 2008 clinical opinion by
M.W., PA-C. This opinion states that there are "many
instances" of treatment of a chronic low back disorder in
service, beginning in the early 1980s. Moreover, the opinion
states that the recent clinical records, following the
Veteran's June 2000 service discharge, reflect that the back
disorder which began in service has continued and is still
being treated. The opinion does not identify the specific
diagnosis of the current chronic low back disorder, but
states that the Veteran has a chronic low back disorder which
has been continuous for many years.
The clinical evidence of record establishes that the Veteran
manifested a low back disorder in service and that the same
low back disorder was present chronically and continuously
following the Veteran's service discharge and continues to
cause a current disability. Each criterion for service
connection for a chronic low back disorder has been met. The
claim of service connection for a low back disability is
granted.
4. Tendonitis of the ankles
The July 2000 VA examination discloses that the examiner
ruled out a diagnosis of tendinitis of the legs or ankles,
stating that the Veteran's physical findings were
inconsistent with that diagnosis. Since there was no medical
diagnosis of the claimed disorder, tendinitis, service
connection was denied.
December 2001 evaluation for return to active duty after
retirement disclosed peroneal tendinitis and possible
instability, right ankle. The examiner who conducted
November 2002 orthopedic evaluation assigned a diagnosis of
chronic bilateral ankle strains, and discussed only in-
service history with respect to this finding. The additional
evidence submitted since the final November 2000 rating
decision establishes that medical diagnoses of a bilateral
ankle disorder, and of tendinitis of the right ankle, have
been assigned. In addition, the provider who described a
right fibula fragment seen on December 2001 radiologic
examination described that finding as part of the examination
of the ankle.
This evidence is new, as it was not previously of record.
This evidence is material to at least one fact, diagnosis of
a claimed ankle disorder, not established at the time of the
prior decision. Therefore, the evidence as to a disorder of
the right ankle or left ankle or bilateral ankles is new and
material, and the claim is reopened. Further development of
the evidence is necessary and this development is discussed
in the remand section which follows the decision.
5. Tendonitis of the legs
July 2000 VA examination which discloses that the examiner
ruled out a diagnosis of tendinitis of the legs is
unfavorable to the request to reopen. A December 2001
evaluation for return to active duty after retirement which
disclosed peroneal tendinitis is favorable to the claim to
reopen, but November 2002 orthopedic evaluation and later
evaluations are again devoid of evidence of a current leg
disorder of either leg.
In an August 2008 private medical opinion, M.W., PA-C, opined
that the Veteran's service treatment records disclose that
the Veteran's "[b]ack pain records indicated treatment [of
the back] with leg and ankle problems . . . He is currently
being referred to a neurosurgical specialist for continued
evaluation and treatment of his back and neurological
symptoms." The statement further reflects that the opinion
is based "solely on review of medical record documentation .
. . "
M.W. did not provide an opinion that the Veteran has a
current leg disorder of either leg. Rather, the opinion
discusses the Veteran's leg and ankle complaints as
manifestations of back pain. M.W.'s opinion appears to
characterize the Veteran's leg and ankle complaints as
neurologic symptoms which are related to the Veteran's back
disorder. This statement confirms that the Veteran has
current leg and ankle pain that began in service, but
attributes those complaints of pain to a back disorder.
Thus, this opinion does not provide new and material evidence
to reopen a claim of entitlement to service connection for a
disorder of either leg.
There is no evidence that a current diagnosis of a leg
disorder has been assigned, although the Veteran has
complaints of leg pain related to his back disorder. This
evidence is not material to reopen a claim of entitlement to
service connection for a leg disorder. The request to open
the claim for service connection for a leg disorder is
denied.
6. Dental disorder
The July 2000 VA examination disclosed the Veteran had dental
treatment in service, but there was no history of dental
trauma in the service treatment records, and the Veteran
stated that he incurred dental trauma as a result of dental
treatment and when teeth cracked. VA's General Counsel has
held that, for purposes of determinations of entitlement to
compensation for a dental disorder, the term "service trauma"
does not include the intended effects of dental treatment
provided during the Veteran's military service. VAOPGCPREC
5-97. The RO determined that, in the absence of evidence of
trauma due to some circumstance other than dental treatment,
service connection for a dental disorder for compensation
purposes could not be granted.
The additional evidence submitted since July 2000 includes
testimony in which the Veteran acknowledges that he does not
have a dental condition resulting from a combat wound. The
Veteran further testified that certain teeth cracked during
service, and that such occurrence should be treated as dental
trauma. The Veteran also reiterated that dental treatment
provided during service which failed to save the treated
teeth should be considered dental trauma. The Veteran has
reiterated evidence already of record at the time of the
prior final determination. The Veteran's contentions are not
material to establish that dental treatment provided during
the Veteran's service may be defined as dental trauma for
purposes of determinations of entitlement to VA benefits,
because the Board is bound by the VA General Counsel's
opinion which is contrary to the Veteran's claim.
The Veteran's testimony as to his belief about the
appropriate definition of dental trauma for purposes of VA
compensation benefits is not new and material to change the
legal definition of dental trauma, and does not establish any
fact not established at the time of the November 2000
decision or any fact which would substantiate a claim for
service connection for a dental disorder for compensation
purposes. The claim for service connection for a dental
disorder may not be granted.
ORDER
An evaluation in excess of 10 percent for sinusitis and
allergic rhinitis is denied.
The request to reopen a claim for service connection for
vision problems diagnosed as refractive error is denied; the
request to reopen a claim for service connection for a
chorioretinal scar, left eye, is granted.
Service connection for a chorioretinal scar is granted.
The request to reopen a claim for service connection for
hearing loss is denied.
The request to reopen a claim for service connection for a
chronic low back disorder is granted, and the claim on the
merits for service connection for a chronic low back disorder
is granted.
The request to reopen a claim for service connection for a
right leg, left leg, or bilateral leg disorder, to include
chronic bilateral tendonitis, is denied.
The request to reopen a claim for service connection for a
disorder of the right or left ankle, or bilateral ankles, is
granted; the appeal is granted to this extent only.
The request to reopen a claim for service connection for a
dental disorder for compensation purposes is denied.
REMAND
The Veteran has submitted new and material evidence to reopen
the claim for service connection for a right ankle, left
ankle, or bilateral ankle disorder. The Veteran should be
afforded VA assistance to develop the claim.
Accordingly, the case is REMANDED for the following action:
1. Afford the Veteran an opportunity to
identify or submit any clinical records or
alternative types of records from any source
proximate to or following the Veteran's
service discharge which might be relevant to
establish etiology, onset, or appropriate
diagnosis of a disorder of either or both
ankles.
2. Afford the Veteran examination of the
ankles. The claims file must be made
available to and reviewed by the examiner in
conjunction with the examination, and the
examination report should reflect that such a
review was made. All pertinent symptomatology
and findings should be reported in detail. Any
indicated diagnostic tests and studies should
be accomplished. Relevant history and
complaints should be recorded in full. The
examiner should review the Veteran's service
treatment records, including the induction and
separation examination reports, relevant post-
service clinical records, including relevant
records obtained following Remand of this
claim.
The examiner is requested to offer an opinion
as to the diagnosis, etiology and/or
approximate onset of a disorder of either or
both ankles. The examiner should first
provide an opinion as to the appropriate
diagnosis of each right, left, or bilateral
ankle disorder.
For each current right, left, or bilateral
ankle disorder, the examiner should provide an
opinion as to whether it is at least as likely
as not (a probability of at least 50 percent)
or whether it is less than likely (less than
50 percent probable) that an ankle disorder a)
had its onset during the Veteran's period of
service, or, (b) that an ankle disorder
diagnosed as arthritis had its onset within
approximately one year following the Veteran's
service discharge in June 2000, or, (c) that
an ankle disorder is etiologically linked to
an incident or injury incurred during service.
Inform the examiner that the term "at least as
likely as not" does not mean merely within the
realm of medical possibility, rather that the
weight of medical evidence both for and
against a conclusion is so evenly divided that
it is as medically sound to find in favor of
causation as it is to find against it.
The examiner should discuss the rationale of
the opinion, whether favorable or unfavorable.
If the examiner cannot provide the requested
opinion without resorting to speculation, the
examiner should expressly indicate this.
3. After assuring that the development
directed above is complete, the appealed claim
should be readjudicated. If any benefit
sought remains denied, the Veteran and his
representative should be issued a supplemental
statement of the case (SSOC) which addresses
actions taken since the issuance of the last
SSOC. The Veteran should be given the
opportunity to respond, and the claim should
thereafter be returned to the Board, if in
order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs